ADES/BITAHEY v. GONZALES

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY (STANYA A. BITAHEY), ) ) ) ) Petitioners/Appellees, ) ) v. ) ) MICHAEL A. GONZALES, ) ) Respondent/Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0821 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2005-052896 The Honorable Mina E. Mendez, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona Attorney General By Jamie R. Heller, Assistant Attorney General Attorneys for Petitioners/Appellees Phoenix Gillespie Shields & Durrant By David L. Goldfarb Mark A. Shields Attorneys for Respondent/Appellant Mesa D O W N I E, Judge ¶1 Michael Gonzales appeals the dismissal of his petition to terminate child support. Finding no error, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Stanya Bitahey gave birth to a son ( G.B. ) in October 2002. On January 9, 2005, Gonzales and Bitahey signed an Arizona Department of Economic Security ( ADES ) Acknowledgment of Paternity notary ( Acknowledgment ) public. The following form before language a witness appears on and a the Acknowledgment immediately above the parents signatures: This Acknowledgement is being signed voluntarily with no threat or harm or duress. I have received written and oral notice and have read the back of this form. I understand my alternatives, the legal consequences and the rights and responsibilities. I swear and affirm under penalty of perjury pursuant to A.R.S. § 13-2702 that this application and any accompanying documents have been examined by me and to the best of my knowledge and belief are true and correct. The back of the ADES form stated that by signing the document, the parties were giving up the right to a court hearing to determine paternity as well as the right to have genetic testing done. The Acknowledgment also advised that it had the same force and effect as a Superior Court judgment pursuant to A.R.S. § 25-812. 2 ¶3 In December 2005, ADES filed request to establish child support. had previously been determined a Post-Paternity ADES alleged that paternity and that Gonzales was G.B. s superior court father. ¶4 Bitahey and Gonzales appeared in regarding ADES child support request on March 7, 2006. hearing, the court issued a stipulated At that judgment ( 2006 Judgment ) that included the following language: MICHAEL A. GONZALES, is the father of the above-named minor child(ren) pursuant to a determination of paternity entered on 01-14-2005 pursuant to ( ) A.R.S. §§ 25-801 and 25-809 ( ) Voluntary acknowledgement filed with Clerk of Court - A.R.S. § 25-812 A-C, (X) Administrative process per A.R.S. §§ 25-812(D) or ( ) _______________. ¶5 Gonzales and Bitahey both signed the judgment and initialed a line stating that they had been informed of the right to a hearing and were stipulating of free will, without having been threatened or coerced. The court ordered Gonzales to pay past and current child support. ¶6 In Paternity 2009, Gonzales Testing. 1 He filed fully a Motion for acknowledge[d] DNA Genetic signing the acknowledgment of paternity, but alleged he was never afforded the opportunity to fully litigate the issue of paternity. 1 ADES Gonzales acknowledged in the superior court that he and Bitahey had a sexual relationship [a]t the time of and for at least 10 months preceding G.B. s birth. 3 opposed the motion, arguing, already been established. inter alia, that paternity had The superior court denied Gonzales motion. ¶7 In June 2011, Gonzales filed a Motion For Relief From Judgment Per Rule 85(C) ( Rule 85(C) Motion ), alleging, inter alia: In early 2011, Respondent was able to get in touch with Mother through a mutual friend, and arrange to pick up the child for a short visit of just about one hour. This visit allowed Respondent to obtain a sample of the child s DNA through a mouth swab. Respondent was then able to have DNA testing performed by Identigene. It is confirmed through genetic testing that Respondent is excluded as the biological father of the child. ¶8 ADES opposed the Rule 85(C) Motion, arguing it was untimely and that res judicata principles barred Gonzales from relitigating paternity. ADES also contended the home use genetic testing kit Gonzales used lacked a reliable chain of custody. 2 June 2011. The superior court denied the Rule 85(C) Motion in Gonzales filed a notice of appeal from that decision, but later withdrew his appeal. 2 The testing laboratory s report states that the collection, transport and testing were not performed in compliance with established Chain-of-Custody guidelines. It disclaims responsibility for the integrity of these samples prior to arriving at the laboratory. 4 ¶9 In Terminate September Support 2011, Pursuant Gonzales to filed Arizona a Petition Revised to Statutes ( A.R.S. ) section 25-503(F) ( support termination petition ). ADES opposed the petition and asked the court to dismiss it. The superior court dismissed the support termination petition, and Gonzales timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). DISCUSSION ¶10 The only issue before us is whether the superior court erred by dismissing the support termination petition. contends that petition was proper because established pursuant to A.R.S. § 25-814. paternity was established under § his Gonzales paternity was ADES counters that 25-812(E), rendering a petition to terminate child support based on § 25-503(F) legally impermissible. Based on our de novo review of the statutes, Andrew R. v. Ariz. Dep t of Econ. Sec., 223 Ariz. 453, 456-57, ¶ 16, 224 P.3d 950, 953-54 (App. 2010), we agree with ADES. ¶11 The 2006 Judgment adjudicated Gonzales paternity and expressly stated that his paternity pursuant to A.R.S. § 25-812(D). this judgment and may not had been established Gonzales did not appeal from now collaterally attack the determination that paternity in this case was established under § 25-812. 5 ¶12 the Even without the express finding in the 2006 Judgment, record demonstrates A.R.S. § 25-812. that paternity was established under That statute permits parents of a child born out of wedlock to establish paternity by, among other things, filing with ADES, health services the [a] superior notarized court, or or the witnessed department statement of that contains the social security numbers of both parents and that is signed by both parents acknowledging paternity. The Acknowledgement at issue here is an ADES form containing the requisite information that was signed by both parents, notarized, witnessed, and filed with ADES in 2005. ¶13 Section 25-503(F), upon which Gonzales support termination petition is based, applies only to presumption[s] of paternity arising under § 25-814. 3 Section 25-503(F) reads, in pertinent part: 3 Section 25-814(A)(4), titled Presumption of paternity, provides that a man is presumed to be the father of the child if: A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity. This statute, which merely gives rise to a presumption of paternity, does not require the statement to be filed with ADES, the court, or the department of health services. Also unlike acknowledgments under A.R.S. § 25-812(A), such statements do not have the same force and effect as a superior court judgment. See A.R.S. § 25-812(D). 6 On petition of a person who has been ordered to pay child support pursuant to a presumption of paternity established pursuant to § 25-814, the court may order the petitioner s support to terminate if the court finds based on clear and convincing evidence that paternity was established by fraud, duress or material mistake of fact. (Emphasis added.) ¶14 The available remedy only in set cases forth when in child A.R.S. support § 25-503(F) has been is ordered pursuant to a presumption of paternity established pursuant to § 25-814. Here, however, we are dealing with an acknowledgment filed under § 25-812, which has the same force and effect as a superior court judgment. A.R.S. § 25-812(D). Additionally, we have a final judgment of paternity issued by the superior court. ¶15 As options ADES notes, regarding Gonzales the had paternity several other issue, legal including: (1) requesting genetic testing before voluntarily acknowledging paternity, see acknowledgment A.R.S. of § 25-812(A)(2); paternity pursuant (2) rescinding to § (3) challenging the voluntary acknowledgment under his 25-812(H); § 25-812(E); (4) appealing the 2006 Judgment; or (5) filing a timely motion to set aside the 2006 Judgment. Gonzales may § 25-503(F). not bring a support As a matter of law, though, termination petition under The superior court therefore properly dismissed his petition. 7 CONCLUSION ¶16 We affirm the judgment of the superior court. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ JOHN C. GEMMILL, Judge 8

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